Tonya Ruth Barnett v. State ( 2020 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00037-CR
TONYA RUTH BARNETT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th District Court
Bowie County, Texas
Trial Court No. 18F0717-005
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Stevens
MEMORANDUM OPINION
A Bowie County jury found Tonya Ruth Barnett guilty of murder and assessed a sentence
of twenty-five years’ imprisonment. See TEX. PENAL CODE ANN. § 19.02(c). On appeal, Barnett
complains that her trial counsel was constitutionally ineffective1 because counsel did not
adequately discuss and admonish Barnett about the disadvantages of submitting the jury charge
without an instruction on the lesser offense of manslaughter. Upon review of the record, we find
Barnett has failed to meet the requirements of Strickland v. Washington2 and, therefore, cannot
show that she received ineffective assistance of counsel. As a result, we affirm the trial court’s
judgment.
I. Background
By her own testimony, Barnett acknowledged shooting her boyfriend, C.J. Ellis, after an
argument. She told the jury that she and Ellis had been romantically involved for about three
months before the events leading to Ellis’s death. At some point during that period, Barnett was
contacted by the mother of Ellis’s child. Barnett discovered that Ellis was still romantically
involved with that woman. Barnett was upset after learning that the mother would accompany
Ellis on an upcoming family trip, while Barnett was not invited. As a result, Barnett broke off
her relationship with Ellis on May 23.
According to Barnett, in the early morning of May 24, 2018, Ellis came to Barnett’s
house enraged about a telephone call he claimed he received from her. Barnett denied having
1
See U.S. CONST. amend VI.
2
Strickland v. Washington, 466 U.S. 668, 687–88 (1984).
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called and demanded that Ellis show her his cell phone. An argument ensued, in which Ellis beat
and choked Barnett. Fearing for her life, Barnett picked up a gun and shot Ellis in the back of his
head. Ellis was dead at the scene by the time emergency responders arrived.
II. Standard of Review
As many cases have noted, the right to counsel does not mean the right to errorless
counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “In order to prevail
on a claim of ineffective assistance of counsel, the defendant must satisfy the two-pronged test
set forth in Strickland . . . .” Lampkin v. State, 470 S.W.3d 876, 896 (Tex. App.—Texarkana,
2015, pet. ref’d); see Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig.
proceeding). The first prong requires a showing that counsel’s performance fell below an
objective standard of reasonableness. Strickland, 466 U.S. at 688. This requirement can be
difficult to meet since there is “a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 689. “This measure of deference, however,
must not be watered down into a disguised form of acquiescence.” Profitt v. Waldron, 831 F.2d
1245, 1248 (5th Cir. 1987) (finding ineffective assistance where counsel failed to request
medical records and relied on court-appointed competency examination when he knew client had
escaped from mental institution).
The second Strickland prong, often called “the prejudice prong,” requires a showing that,
but for counsel’s unprofessional error, there is a reasonable probability that the result of the
proceeding would have been different. Strickland, 466 U.S. at 694. “A reasonable probability”
is defined as “a probability sufficient to undermine confidence in the outcome.” Id. Thus, to
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establish prejudice, an applicant must show “that counsel’s errors were so serious as to deprive
defendant of a fair trial, a trial whose result was reliable.” Id. at 687. It is not sufficient for
applicant to show “that the errors had some conceivable effect on the outcome of the
proceeding.” Id. at 693. Rather, he must show that “there is a reasonable probability that, absent
the errors, the fact[-]finder would have had a reasonable doubt respecting guilt.” Id. at 695.
The applicant has the burden to prove ineffective assistance of counsel by a
preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Allegations of ineffectiveness must be based on the record, and the presumption of a sound trial
strategy cannot be overcome absent evidence in the record of the attorney’s reasons for his
conduct. Busby v. State, 990 S.W.2d 263, 268–69 (Tex. Crim. App. 1999). The reviewing court
must look to the totality of the representation, and its decision must be based on the facts of the
particular case, viewed at the time of counsel’s conduct so as to eliminate hindsight bias.
Strickland, 466 U.S. at 690. In all cases, the “ultimate focus of inquiry must be on the
fundamental fairness of the proceeding.” Id. at 696, Ex parte Martinez, 330 S.W.3d 891, 901
(Tex. Crim. App. 2011) (orig. proceeding).
A failure to make a showing under either prong defeats a claim for ineffective assistance.
Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Allegations of ineffectiveness
“must ‘be firmly founded in the record.’” Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim.
App. 2002) (quoting Thompson, 9 S.W.3d at 813). The Strickland test “of necessity requires a
case-by-case examination of the evidence.” Williams v. Taylor, 529 U.S. 362, 382 (2000)
(quoting Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring in judgment)).
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When a claim of ineffective assistance of counsel is raised for the first time on direct
appeal, the record “is in almost all cases inadequate to show that counsel’s conduct fell below an
objectively reasonable standard of performance.” Andrews v. State, 159 S.W.3d 98, 102 (Tex.
Crim. App. 2005). Even so, “when no reasonable trial strategy could justify the trial counsel’s
conduct, counsel’s performance falls below an objective standard of reasonableness as a matter
of law, regardless of whether the record adequately reflects the trial counsel’s subjective reasons
for acting as she did.” Id. Moreover, where the reviewing court “can conceive potential
reasonable trial strategies that counsel could have been pursuing,” the court “simply cannot
conclude that counsel has performed deficiently.” Id. at 103. Essentially, when a party raises an
ineffective assistance of counsel claim for the first time on direct appeal, the defendant must
show that, “under prevailing professional norms,” Strickland, 466 U.S. at 690, no competent
attorney would do what trial counsel did or no competent attorney would fail to do what trial
counsel failed to do. Andrews, 159 S.W.3d at 102.
III. Analysis
Barnett claims that trial counsel was ineffective for not sufficiently explaining to her the
advantages and disadvantages of including a jury charge instruction on the lesser offense of
manslaughter. That said, Barnett offers no argument or authority to support her claim that trial
counsel’s performance was constitutionally deficient. There is nothing in the record suggesting
trial counsel’s strategy or her reasons for her choices in her representation of Barnett. Moreover,
Barnett’s appellate brief offers no argument or discussion for whether manslaughter indeed was a
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lesser-included offense of murder as alleged in this case3 or whether Barnett was entitled to a
jury instruction on this matter. Because Barnett failed to satisfy Strickland’s first requirement,
we find that she has failed to show ineffective assistance of counsel at trial.
While the record is silent about trial counsel’s thinking about requesting a jury instruction
on a lesser offense, Barnett herself told the trial court that she did not wish such an instruction to
be included in the jury’s charge. After the State rested its case-in-chief and the trial court denied
Barnett’s motion for a directed verdict, she took the stand on the matter of the charge. Outside
the jury’s presence, Barnett testified that (1) she was aware of her Fifth Amendment right, yet,
wanted to testify before the jury; (2) she would be subject to cross-examination by the State’s
attorney; and (3) she did not want the court to submit an instruction on the lesser-included
offense of manslaughter. As to the lesser-offense option, Barnett also testified that she
understood, upon a conviction for murder, she would face a verdict of between five and ninety-
nine years’ imprisonment, versus a penalty range of two to twenty years’ confinement if
convicted of the lesser offense of manslaughter.
The Texas Court of Criminal Appeals has acknowledged that pursuing an “all or nothing”
model with the jury charge—consciously choosing to submit only the higher, indicted offense for
conviction rather than include one or more lesser-included offenses with lower ranges of
punishment—“is a valid trial strategy[, and] defense counsel is not ineffective for declining to
3
In Dowden v. State, 758 S.W.2d 264, 270–71 (Tex. Crim. App. 1988), the defendant was not entitled to an
instruction on the lesser offense of manslaughter where there was no evidence that he acted with mere recklessness.
Yet, the murder defendant in Moore v. State, 969 S.W.2d 4, 11 (Tex. Crim. App. 1998), was entitled to an
instruction on manslaughter because there was evidence that he could have acted recklessly.
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request a lesser-included-offense instruction.” Grey v. State, 298 S.W.3d 644, 655 (Tex. Crim.
App. 2009).
On appeal, Barnett argues, without source or support, that her trial counsel did not
admonish Barnett sufficiently as to the hazards of proceeding without a jury instruction on a
lesser offense. There is no record establishing whether trial counsel explained the advantages
and disadvantages of including an instruction authorizing a conviction on a lesser charge, the
extent of Barnett’s apprehension of such information, or how much or how little counsel and
Barnett discussed this matter. Barnett’s situation demonstrates why “[c]laims of ineffective
assistance are seldom successfully navigated on direct appeal.” Reese v. State, 273 S.W.3d 344,
348 (Tex. App.—Texarkana 2008, no pet.). On the record before us, we find that Barnett has
failed to “rebut the presumption” that trial counsel acted reasonably in her decisions and strategy.
Thompson, 9 S.W.3d at 814. She has thus failed to show ineffectiveness of counsel. As a result,
we overrule Barnett’s only point of error.
IV. Conclusion
For these reasons, the trial court’s judgment is affirmed.
Scott E. Stevens
Justice
Date Submitted: October 26, 2020
Date Decided: December 9, 2020
Do Not Publish
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